Years of dysfunction within the Arizona U.S. Attorney’s office is to blame for the botched Fast and Furious gun-walking investigation, according to a report released today by minority Democrats on the House Oversight and Government Reform Committee.
The nearly 89-page report was published just two days before Attorney General Eric Holder testifies before the GOP-led committee. It pushes back against assertions from House Republicans that top Justice Department officials were aware of and gave the go-ahead to the controversial operation. While many Republicans have called for Holder’s ouster over Fast and Furious, the Democratic report focuses on prosecutors on the ground in Arizona who oversaw the operation run by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
“It is clear that ATF agents in Phoenix and prosecutors in the Arizona U.S. Attorney’s Office embarked on a deliberate strategy not to arrest suspected straw purchasers while they attempted to make larger cases against higher-level targets,” said the report, entitled ”Fatally Flawed: Five Years of Gunwalking in Arizona.” It says documents show that Operation Fast and Furious was only “the latest in a series of fatally flawed operations run by ATF agents in Phoenix and the Arizona U.S. Attorney’s office.”
It catalogs similar gun-walking operations, starting as early as 2006, that were devised by the Phoenix Field Division of the ATF. The division allowed low-level straw-buyers to illegally purchase weapons in the United States. Federal agents then attempted to track the weapons in order to build bigger cases against high-level traffickers to Mexico. But rather than ending operations that had gone awry, agents launched “several similarly reckless operations over the course of several years, also with tragic results,” the report says.
The report doesn’t simply blame former Arizona U.S. Attorney Dennis Burke, who resigned in the wake of the scandal. It shows a history of finger-pointing between the U.S. Attorney’s Office and ATF field office in Phoenix, with both sides faulting the other for delays in indictments and prosecutions.
Federal agents in Arizona have struggled for years with what they described as an unreasonably high threshold for evidence required before they could arrest straw buyer, the report says. Agents were told they could not make prosecutable cases against arms traffickers for example, unless they could recover the actual weapons involved, the report said.
But “because it was difficult to get Mexican authorities to cooperate in returning recovered firearms from that country, agents claimed that this created an effective bar to prosecution of many trafficking suspects,” the report states.
Such problems also existed under former Arizona U.S. Attorneys Paul Charlton and Diane Humetewa, both George W. Bush appointees, the report said. Humetewa served as U.S. Attorney from 2007 to 2009 and Charlton served from 2001 to 2007.
William Newell, the Special Agent in charge of the Phoenix Field Divison, said other federal districts in his jurisdiction, including New Mexico, Colorado, Wyoming and Utah, did not have the same high evidentiary standard as Arizona, the report states. Agents who transferred to Arizona from areas like New York also expressed dismay at how few weapons cases were being made.
In related news, Patrick Cunningham, former chief of the Criminal Division in the Arizona U.S. Attorney’s Office, resigned yesterday after he invoked his Fifth Amendment right against self-incrimination and refused to testify before the House Oversight Committee.
Updated Feb. 1: Sen. Charles Grassley, ranking member of the Senate Judiciary Committee, released a statement in response to the House committee’s report.
“The idea that senior political appointees have clean hands in these gunwalking scandals doesn’t pass the laugh test, especially considering we’ve seen less than 10 percent of the pages that the Justice Department has provided the Inspector General. They ignored the warning signs and failed to put a stop to it or hold anyone accountable. Lanny Breuer is a senior political appointee, and he admits to knowing about gunwalking as early as April 2010. Documents turned over late Friday night indicate he was still discussing plans to let guns cross the border with Mexican officials on the same day the Department denied to me in writing that ATF would ever let guns walk. He stood mute as this administration fought tooth and nail to keep any of this information from coming out for a year. It will take a lot more than a knee-jerk defense from their political allies in Congress to restore public trust in the leadership of the Justice Department. The American people want to see those who failed to act be held accountable.”
Patrick J. Cunningham, the chief of the Arizona U.S. Attorney’s office criminal division, resigned yesterday, the latest casualty of the Fast and Furious gun-walking scandal.
Patrick Cunningham
Cunningham announced his intention to step down two weeks ago and finished his last day on Monday, said Bill Solomon, an Arizona Assistant U.S. Attorney and acting public affairs officer. Cunningham will go into private practice, Solomon said.
Cunningham was at the center of a damaging episode in the Justice Department’s handling of the aftermath of the flawed gun-tracing operation, in which some 2000 weapons purchased by straw buyers in the U.S. crossed the Mexican border into the hands of drug cartels. Two of those weapons were found at the scene of a shootout in Arizona that killed a border patrol agent.
The Arizona criminal division chief gave inaccurate information about the investigation to then-U.S. Attorney Dennis Burke. The bad information then made its way into a Feb. 4, 2011 letter to Sen. Charles Grassley (R-Iowa) that the Justice Department later had to withdraw.
The Feb. 4, 2011 letter stated wrongly that the Bureau of Alcohol, Tobacco, Firearms and Explosives, which ran the gun probe overseen by Arizona prosecutors, had never intentionally allowed guns to cross the border or knowingly allowed the sale of assault weapons to suspicious straw buyers. Burke had repeatedly assured senior Justice Department leaders of the information. But when the information turned out to be wrong, congressional Republicans cited the episode to demand accountability from top Justice Department officials for Fast and Furious.
Grassley has even demanded that Assistant Attorney General Lanny Breuer, who oversees the Justice Department’s Criminal Division, resign.
Burke told investigators for the House Oversight and Government Reform Committee that he had based his information on the assurances of Cunningham, according to a report by the panel’s minority Democrats released today. Cunningham “adamantly denied” that so-called gun walking over the border had occurred, Burke said, according to the report.
Burke was forced to resign in August as controversy mounted.
House Oversight Chairman Darrell Issa (R-Calif.) announced he would subpoena Cunningham to testify about the gun-running investigation, after Cunningham canceled his scheduled Jan. 17 voluntary interview with the panel. Cunningham’s attorney notified Issa that Cunningham would invoke his Fifth Amendment right against self-incrimination to avoid testifying. The attorney, Tobin J. Romero, wrote to Issa: “If, as you claim, Department officials have blamed my client, they have blamed him unfairly.”
Romero did not mention in his Jan. 19 letter that Cunningham was resigning.
Assistant U.S. Attorney Gary Restaino will fill Cunningham’s position as criminal division chief, Solomon told Main Justice. Restaino was involved in the prosecution of former Arizona Rep. Richard G. Renzi on corruption charges.
Cunningham has spent 32 years in government service, including as an Army JAG officer and state prosecutor, according to his attorney’s letter to Issa. He rejoined the U.S. Attorney’s office in Phoenix in 2010.
The Justice Department has released several email exchanges between top officials at the department and the Arizona U.S. Attorney’s office that took place immediately after the death of a Border Patrol agent that has become the center of the controversial Fast and Furious gun-running operation.
The email exchange, sent to Congress late Friday, first show on Dec. 15, 2010, former Arizona U.S. Attorney Dennis Burke alerting Monty Wilkinson, an aide to Attorney General Eric Holder, about the shooting of agent Brian Terry. Responding, Wilkinson writes “Tragic. I’ve alerted the AG, Acting DAG…”
Hours later, once the Justice Department had been notified that Terry died from his wounds, Burke wrote back to Wilkinson, saying “The guns found in the desert near the murder [sic] BP officer connect back to the investigation we were going to talk about — they were AK-47s purchased at a Phoenix gun store.”
That investigation, referred to as Fast and Furious, was a gun-walking operation headed by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Agents tracked about 2,000 guns purchased by straw buyers in the United States and intended for Mexico. The operation’s goal was to track the weapons’ movements in order to get proof of Mexican cartel involvement. But the operation backfired, with the ATF losing track of hundreds of weapons. Two AK-47s from the operation were recovered at the scene of the shootout between Border Patrol agents and Mexican bandits where Terry was killed.
Many in Congress have been adamant about getting to the bottom of the flawed operation, with top Justice Department officials being called to testify at hearings. Some Republicans in Congress have called for Holder to resign or be fired in the wake of the operation. Many others involved in the operation have been reassigned to new posts.
Also on Friday, the Justice Department issued a letter to top members of the House Oversight Committee and the Senate and House judiciary committees.
The letter, signed by Deputy Attorney General James M. Cole, points out several actions the department and ATF have already taken to ensure “that such tactics are not utilized in the future” and to stave off “the epidemic of gun trafficking on the Southwest border.”
Cole highlighted changes within the department and ATF, including appointing B. Todd Jones to serve as Acting Director of ATF, clarifying ATF’s firearm transfer policy and requiring additional oversight on wiretap and confidential-informant cases, according to the letter.
Cole also called on Congress to close legal loopholes that make it difficult to arrest straw buyers and track weapons. Cole asked for Congress to enact a federal firearms trafficking statute, which would put straw purchasing and trafficking on the books as enforceable violations. The department also calls for stronger penalties for such crimes.
In addition, Cole asked Congress to vote to fund an ATF policy that requires gun dealers in the border states to report multiple sales of certain guns to law enforcement.
Holder is slated to go before the House Oversight Committee on Thursday.
Operation Fast and Furious, the controversial gun-tracking effort that has prompted calls for some heads to roll at the Department of Justice, is having another side-effect: delaying a Senate vote on Kathryn Keneally, who has been nominated to be Assistant Attorney General to head DOJ’s Tax Division.
Sen. Charles E. Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, says Keneally seems qualified and that he’s prepared to vote for her. “However, given the lack of cooperation I’m getting from the Department of Justice, I can’t commit to moving forward with her nomination on the Senate floor,” Grassley said last week as the furor over Fast and Furious seemed to peak.
Grassley has been among the loudest critics of Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed straw buyers to acquire hundreds of guns so that they could be tracked across the U.S.-Mexican border, helping law enforcement root out Mexican gangsters. The endeavor backfired mightily, as the ATF lost track of many of the weapons, two of which were found at the scene of a shootout a year ago in which a Border Patrol agent was killed.
Grassley has zeroed in on Assistant Attorney General Lanny A. Breuer, accusing the Criminal Division chief not only of “incredibly poor judgment” but of being intentionally misleading in his statements about Fast and Furious. Grassley demanded last week that Breuer step down, or be fired by Attorney General Eric Holder (see Main Justice’s report).
Grassley has demanded that DOJ officials who are interviewed in the inquiry over Fast and Furious not double-team their questioners by being accompanied by both DOJ and personal lawyers. Until the DOJ cooperates, Keneally’s nomination may languish, even though Grassley said she demonstrated an impressive command of tax issues — impressive, at least, when compared to those of Mary Smith, whose nomination to head the Tax Division was withdrawn after her critics complained her main qualification was not expertise in tax matters but her political connections (see Main Justice’s report).
The Fast and Furious controversy could also stall the nomination of Kevin A. Ohlson, a high DOJ official and longtime aide to Holder, to the U.S. Court of Appeals for the Armed Forces, as Main Justice noted recently.
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